Exhibit 2.4
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DIRECTOR-SHAREHOLDER AGREEMENT
THIS DIRECTOR-SHAREHOLDER AGREEMENT ("Agreement"), is made as of this 5th
day of November, 2004, by and between First National Bank of Northern
California, a national banking association ("FNB"), and the director-shareholder
of Sequoia National Bank, a national banking association ("SNB"), whose name is
set forth under "Director" on the signature page hereof (the "Director"). FNB is
contemporaneously herewith entering into agreements with other
director-shareholders of SNB, which agreements are identical in all respects
hereto, except as to (a) the number of shares of SNB's common stock, par value
$1.00 per share (the "SNB Stock") owned by such other director-shareholders, and
(b) the name and address of the other director-shareholders. The Director and
such other persons shall hereinafter be referred to as to the "Directors" and
this Agreement and such other agreements as the "Director-Shareholder
Agreements." This Agreement is made with reference to the following:
WHEREAS, that certain Acquisition Agreement (the "Acquisition Agreement"),
dated as of November 5, 2004, entered into by and among FNB, SNB and Hemisphere
National Bank, a national banking association ("HNB"), provides for the
acquisition by FNB of one hundred percent (100%) of the SNB Stock, through the
consolidation (the "Consolidation") of SNB with SNB Interim National Bank, a
national banking association to be organized for the purpose as a wholly-owned
subsidiary of FNB (the "Interim National Bank"); and
WHEREAS, as a condition precedent to the obligations of FNB under Sections
7.1(d) and 8.2(j) of the Acquisition Agreement, the Director and all the
Directors shall have entered into Director-Shareholder Agreements concurrent
with the execution of the Acquisition Agreement, in accordance with the terms,
conditions, and provisions thereof;
NOW, THEREFORE, in order to effectuate the transactions set forth above and
in consideration of the mutual covenants, conditions, agreements,
representations and warranties contained herein and in the Agreement, and
intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
COVENANTS OF DIRECTOR
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1.1 Vote of Shareholders. At the meeting of shareholders of SNB referred
to in Section 7.1(d) of the Acquisition Agreement (the "Meeting"), the Director
shall vote or cause to be voted the shares of SNB Stock indicated as owned or
controlled by such Director in Schedule I attached hereto, and any other shares
of SNB Stock now owned or hereafter acquired or controlled by such Director, in
favor of, and to approve the principal terms of, the Consolidation and the
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Liquidation and any other matter contemplated by the Acquisition Agreement which
requires the approval of the shareholders of SNB.
1.2 Other Contracts. From and after the date of this Agreement, the
Director shall not enter into or become subject to any agreement or commitment
which would restrict or in any way impair the obligations of the Director to
comply with all the terms of this Agreement, including, without limitation, any
other agreement to sell, transfer or otherwise dispose of the Director's shares
of SNB Stock.
1.3 Updating Information. In the event that the Director shall discover
that any representation or warranty made herein by such Director was false or
misleading in any material respect when made or that any event has occurred such
that any representation or warranty of the Director made herein would, if made
at and as of the time of the occurrence of such event, or thereafter, be
incorrect in any material respect, the Director shall deliver to FNB a statement
specifying that it is delivered pursuant to this Section 1.3 and stating in
reasonable detail the facts with respect thereto. Delivery of any such statement
shall not limit any rights which FNB may otherwise have under this Agreement.
1.4 Agreement to Recommend. The Director agrees that, upon the execution
of this Agreement, the Director shall at all times use his or her best efforts
in order to obtain the approval of the shareholders of SNB of the principal
terms of the Consolidation and Liquidation, and any other matter contemplated by
the Agreement which requires approval of the shareholders of SNB, and shall
recommend the approval of such matters by the shareholders of SNB at the
Meeting; provided, however, that the terms of this Section 1.4 shall not apply
in the event SNB receives a qualifying "business combination" (as defined in
Section 7.1(a)(x) of the Acquisition Agreement) with respect to which SNB's
Board of Directors shall have determined, after consultation with SNB's counsel,
that action by the SNB Board of Directors under the fiduciary duties owed by the
Board of Directors to the holders of SNB Stock, which determination has been
made acting in good faith and on the basis of a written opinion from a financial
advisor retained by SNB to the effect that the financial terms of such
qualifying "business combination" (as defined in Section 7.1(a)(x) of the
Acquisition Agreement) are, from the perspective of SNB shareholders, superior
to the Consolidation, Liquidation and other transactions provided by the
Acquisition Agreement.
1.5 SNB Stock Options. The Director agrees: (i) not to exercise any
outstanding SNB Stock Options granted to and held by the Director (the
"Director's Options") as of the date hereof and as set forth in Schedule II
attached hereto; and (ii) to sell the Director's Options to SNB in accordance
with Section 1.8 of the Acquisition Agreement. The Director further agrees that
any of the Director's Options not sold to SNB pursuant to Section 1.8 of the
Acquisition Agreement prior to the Effective Time shall expire at the Effective
Time.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF DIRECTOR
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2.1 Representations and Warranties of Director. The Director represents
and warrants to, and agrees with, FNB as follows:
(a) Capacity. The Director has all requisite capacity to enter
into and to perform the Director's obligations under this Agreement.
(b) Agreement. The Director has received a copy of the Acquisition
Agreement and has had the opportunity to review and to consider the terms and
conditions contained in this Agreement and in the Acquisition Agreement and to
confer with his or her counsel concerning said terms and conditions.
(c) Binding Agreement. This Agreement has been duly executed and
delivered by such Director and constitutes a valid and legally binding agreement
of such Director.
(d) Ownership of Shares. Schedule I hereto correctly sets forth the
number of shares of SNB Stock owned by the Director or with respect to which
such Director has sole or shared voting power, and the Director has good and
marketable title to all such shares of SNB Stock free and clear of any liens,
security interests, charges or other encumbrances of any kind of nature, except
as set forth on Schedule I.
(e) Relationship with SNB. The Director is currently a director of
SNB.
(f) Non-Contravention. The execution and delivery of this Agreement
by the Director does not, and the performance by the Director of the Director's
obligations hereunder and the consummation by the Director of the transactions
contemplated hereby will not, in any material respect, violate or conflict with,
or constitute a material default under any agreement, instrument, contract or
other obligation or any order, arbitration award, judgment or decree to which
the Director is a party or by which the Director is bound, or any statute, rule
or regulation to which the Director or any of the Director's property is
subject.
ARTICLE III
TERMINATION
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3.1 Automatic Termination. This Agreement shall automatically terminate
and be of no further force or effect if the Agreement is terminated in
accordance with the terms thereof, except as to any breach occurring prior to
the date of such termination.
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ARTICLE IV
MISCELLANEOUS
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4.1 Expenses. Each party hereto shall pay its own costs and expenses in
connection with this Agreement and the transactions covered and contemplated
hereby; provided, however, that nothing contained herein shall preclude the
payment of the Director's expenses in connection with the negotiation and
documentation of this Agreement by SNB.
4.2 Notices. All communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given to the
appropriate parties if delivered in person, or if sent by Federal Express,
overnight delivery United States mail, or other overnight delivery service, or
sent by facsimile transmission (with confirmation) addressed as follows:
(a) If to the Director, to the address set forth in Schedule I
attached hereto.
With a copy to:
Sequoia National Bank
65 Post Street
San Francisco, California 94104
Attention:
Fax: (415) 781-4778
With an additional copy to:
Tobin & Tobin
500 Sansome Street, 8th Floor
San Francisco, California 94111
Fax: (415) 433-3883
(b) If to FNB, to:
First National Bank of Northern California
975 El. Camino Real
South San Francisco, California 94080
Attention: Thomas C. McGraw
Fax: (650) 588-9695
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With a copy to:
Dodd Mason George LLP
100 Century Center Court, Suite 605
San Jose, California 95112-4536
Fax: (408) 452-1487
or such other address as any party may have furnished in writing to the other
parties.
4.3 Entire and Sole Agreement. The making, execution and delivery of
this Agreement by the parties hereto have not been induced by any
representations, statements, warranties or agreements other than those expressed
herein and in the Agreement. This Agreement embodies the entire understanding of
the parties, and there are no further or other agreements or understandings,
whether written or oral, in effect among the parties relating to the subject
matter hereof, unless expressly referred to by reference herein.
4.4 Successors and Assigns. Except as otherwise provided in this
Agreement, all covenants and agreements of the parties contained in this
Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereto.
4.5 Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of California.
4.6 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4.7 Amendment, Supplement and Waiver. This Agreement may be amended or
supplemented, and compliance with the provisions hereof may be waived only by an
instrument in writing signed by the party against which enforcement of such
amendment, supplement or waiver of compliance is sought.
4.8 Headings. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
4.9 Specific Performance. It is recognized and agreed that monetary
damages will not compensate the parties hereto for nonperformance by any party.
Accordingly, each party agrees that his, her or its obligation shall be
enforceable by a court order requiring specific performance.
4.10 Several Obligations. All duties and obligations of the Director
executing this Agreement shall be several and not joint with the duties and
obligations of other Directors executing similar Director-Shareholder Agreements
with FNB.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
DIRECTOR FIRST NATIONAL BANK
OF NORTHERN CALIFORNIA
_____________________________ By: ________________________________
_____________________________ ________________________________
(printed name) (printed name)
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SCHEDULE I
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NAME OF DIRECTOR:
ADDRESS OF DIRECTOR:
CERTIFICATE NUMBER NUMBER OF SHARES REGISTERED OWNER(S)
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DESCRIBE ANY LIENS, SECURITY INTERESTS, CHARGES OR OTHER ENCUMBRANCES:
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SCHEDULE II
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NAME OF DIRECTOR:
ADDRESS OF DIRECTOR:
NUMBER OF SNB STOCK OPTIONS EXERCISE PRICE
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